1 Denio 378 | Court for the Trial of Impeachments and Correction of Errors | 1845
When there is neither fraud nor express warranty on the sale of a chattel, the buyer takes the risk of its quality and condition. No warranty of any kind can bo implied from the fact that a sound price was paid. Caveat emptor, and not caveat venditor, is the rule of the common law; and that is our law. I speak of an executed, and not of an executory contract for the sale of goods. (See Howard v. Hoey, 23 Wend. 350.) Some of the English judges have lately shown a strong tendency towards the doctrines of the civil law in relation to sales, and have been disposed to imply warranties where none were actually made. This is the more remarkable for the reason that the common law judges at Westminster hall have not heretofore been disposed to think very highly of the civil law, except where it coincided with their own; and it has been thought a strong trait of British character, that nothing in the institutions of other countries is esteemed of much value, unless it be also common to the laws and customs of England. I do not regret to find that there are men in Great Britain who can look beyond the shores of that is1 and :• but I
The last attempt with us to substitute the civil, for the common Jaw rule, was made in relation to a sale of flour, which proved to be bad. The attempt failed, both in this court and the court of errors. (Hart v. Wright, 17 Wend. 267, and 18 id. 449.) We have made one inroad upon the common law rule, and allowed a warranty to be implied on a sale by sample, that the bulk of the article corresponds in quality with the sample exhibited. (Waring v. Mason, 18 Wend. 425.) This exception to the general rule, although now firmly established, stands upon no principle. If the purchaser wants such a warranty, he should ask for it; and then the vendor will have the opportunity of saying whether he will consent to make such a contract or not. The law now makes it for him without his consent: and he can only get rid of that result by taking the precaution to agree at the time of the sale, that no contract which he does not make shall afterwards be implied against him. It would, I think, have been better had the' maxim of caveat eniptor been leit unbroken.
PVe are reterrea to the authorihr of Blackstone for another exception to the general rule, and it is insisted that on a sale of provisions, there is an implied warranty that they are whole
Although the doctrine of Blackstone cannot be supported in its whole extent, I am not disposed .to deny, that on a sale of provisions for immediate consumption, the vendor may be held responsible, in some form, for the sound and wholesome condition of the articles which he sells. It is not,' perhaps, too much
Judgment affirmed.